Zarisky v. Kansas City Public Service Co.

• Decision Date: 05 March 1945
• Parties: Celia Zarisky, v. Kansas City Public Service Company, a Corporation
• Court: Kansas Court of Appeals

186 S.W.2d 854

239 Mo.App. 396

Celia Zarisky, v. Kansas City Public Service Company, a Corporation

Court of Appeals of Missouri, Kansas City

March 5, 1945

Appeal from Jackson Circuit Court; Hon. Paul A. Buzard, Judge.

Reversed and remanded (with directions).

Charles L. Carr and Hogsett, Trippe, Depping & Houts for appellant.

(1) The court erred in admitting in evidence question and answer based in part upon the hearsay report of another doctor as to matters revealed by X-rays which the witness had not seen. In re Thomasson's Case, 347 Mo. 748, 148 S.W.2d 757, 763; Woelfle v. Conn. Mut. Life Ins. Co., 234 Mo.App. 135, 112 S.W.2d 865, 874; Kinchlow v. K. C., K V. & W. Ry. (Mo.), 264 S.W. 416, 421; Curry v Federal Ins. Co., 221 Mo.App. 626, 287 S.W. 1053, 1057; Gash v. Mansfield (Mo. App.), 28 S.W.2d 127, 132; Ambruster v. Levitt Realty & Inv. Co., 341 Mo. 364 107 S.W.2d 74, 80; Berry v. K. C. P. S. Co., 343 Mo. 474, 121 S.W.2d 825, 832; Oesterle v. Kroger Grocery & Baking Co., 346 Mo. 321, 141 S.W.2d 780, 782, and cases cited; Hayes v. Equitable Life Assur. Soc., 235 Mo.App. 1216, 150 S.W.2d 1113, 1118-19; Nagel v. Thompson (Mo. App.), 170 S.W.2d 416, 423. (2) The court erred in refusing to declare a mistrial, and to discharge the jury, for misconduct of plaintiff's counsel. Brown v. Hannibal & St. Joseph R. R., 66 Mo. 588, 599; Haynes v. Town of Trenton, 108 Mo. 123, 133; Evans v. Town of Trenton, 112 Mo. 390, 404-5; Williams v. St. L. & S. F. Ry., 123 Mo. 573, 586; Rothschild v. Barck, 324 Mo. 1121, 26 S.W.2d 760, 763; Amsinger v. Najim, 335 Mo. 528, 73 S.W.2d 214-16; State ex rel. State Highway Commission v. Patton, 29 Mo.App. 331, 77 S.W.2d 857, 858; Ryan v. Sheffield Car & Equipment Co. (Mo. App.), 24 S.W.2d 166, 170; Smith v. St. Louis, S.W. Ry. Co. (Mo. App.), 31 S.W.2d 105, 106, 107; Hendrick v. Kauffman (Mo. App.), 66 S.W.2d 985, 988; Rytersky v. O'Brine, 335 Mo. 22, 70 S.W.2d 538, 541; Chaffin v. Kansas City, 230 Mo.App. 434, 92 S.W.2d 917, 920, 921; Page v. Unterreiner (Mo. App.), 106 S.W.2d 528, 538; Buehler v. Festus Merc. Co., 343 Mo. 139, 119 S.W.2d 961, 966, 969.

E. E. Thompson, Alfred H. Osborne, Thompson & Osborne and Chester B. Kaplan, for respondent.

(1) The evidence admitted by the question and answer complained of could only affect amount of verdict which is not claimed to be excessive by defendant. Sparks v. Auslander (Mo.), 182 S.W.2d 167, l. c. 173; Sec. 1228, R. S. 1939, Mo. St. Ann, 1939, Sec. 1228; Exchange Nat. Bank of Jefferson City v. Hinkel (Mo. App.), 171 S.W.2d 104, l. c. 107; Drake v. K. C. P. S. Co. (Mo.), 63 S.W.2d 75, l. c. 81; Shouse v. Dubinsky et al. (Mo. App.), 38 S.W.2d 530, l. c. 534; John v. Aetna Life Ins. Co. of Hartford, Conn. (Mo. App.), 100 S.W.2d 936, l. c. 941; Whittington v. Westport Hotel Operating Co. et al. (Mo.), 33 S.W.2d 963, 967. (2) The court exercised its discretion. No claim being made by defendant on the ground the verdict was excessive, the failure to discharge the jury could not in any event have been prejudicial. Neal v. Caldwell (Mo.), 34 S.W.2d 104, l. c. 111; Massman v. Muehlebach (Mo. App.), 95 S.W.2d 808, l. c. 813; Sparks v. Auslander (Mo.), 182 S.W.2d 167, l. c. 173.

OPINION

Dew, J.

This action was brought in the Circuit Court of Jackson County, Missouri, by Celia Zarisky against the appellant for personal injuries received by her in a fall while riding as a passenger in one of appellant's street cars. Verdict was rendered for the respondent in the sum of $ 2300.00. Defendant appealed. Respondent and appellant will hereinafter be referred to respectively as plaintiff and defendant.

There are no questions before us on this appeal relative to the pleadings and they will therefore be briefly described. The petition was in the usual form and alleged that while plaintiff was riding in one of defendant's street cars as a passenger, and while said cars was going south on Main Street in Kansas City, Missouri, at a point near 29th and Main Streets, defendant so carelessly and negligently drove operated and maintained said car as to cause it to "violently jerk and lurch and to suddenly stop with a violent and unusual jerk", throwing plaintiff against the seats and floors of the car with great force and causing her to sustain the injuries therein described, and that the same will be permanent.

The answer was a general denial.

The defendant admits in its brief that the street car in question was suddenly brought to a stop or near stop, and then started forward, and that plaintiff fell to the floor at the time. Defendant's testimony tended to show that the action of the operator of he street car complained of was made necessary to avoid a collision with an automobile which suddenly turned into the path of the street car, and that the sudden slackening of the speed of the street car was not unusual for an emergency stop or near stop. The appeal involves no dispute as to the facts in evidence, except the permanency of plaintiff's injuries.

Defendant's first assignment of error arises out of a question and answer which the trial court permitted plaintiff's counsel to read to the jury, over defendant's objection, as a part of the deposition of plaintiff's witness Dr. Cohen. This witness being about to enter the armed forces of the United States, his deposition was taken by the plaintiff. In the deposition the witness had testified that he had attended the plaintiff shortly after her fall in the street car, and from time to time thereafter to the present; that by manipulation and with the aid of X-rays he had found plaintiff's coccyx bone had been distorted and that she had osteo-arthritis; that, in his opinion, her condition was caused by her fall in the street. Among other questions, he was asked:

"Q. Now, doctor, assuming the facts set forth in the two last preceding questions, I want to ask you whether or not the condition or conditions which you find Mrs. Zarisky to be suffering from, are, in your opinion, reasonably certain to remain permanent?

"A. Yes, I think they will remain permanent".

The question next preceding the one quoted, and other questions and answers in the direct examination, had related to the X-ray films and the witness's interpretation of the same. On cross-examination it was developed that the witness did not take the X-rays, had never seen them, and that his only knowledge and interpretation of them were based on a report concerning them furnished to him by Dr. Donaldson, who had taken the X-rays. Objection of defendant's counsel was noted to the answers of the witness based on the X-rays as incompetent, as hearsay and calling for the conclusion of the witness, and motion was made to strike out the answers of the witness relating to the X-rays.

In the course of the trial counsel for the parties met in the chambers with the trial judge to obtain rulings on the above objections. Upon indication by the court that the objections were well founded, plaintiff's counsel announced his purpose not to read to the jury the parts of the deposition so complained of, but finally insisted, however, on reading the question and answer above quoted. Both the court and defendant's counsel pointed out that the question was expressly based on preceding matter referred to and to be excluded. Over the repeated objections of the defendant's counsel, plaintiff's counsel was permitted by the court to read and did read to the jury the quoted question and answer, omitting the preceding question and others, together with the answers thereto, relating to the X-ray films.

Thus it is evident that the opinion of plaintiff's attending physician that plaintiff's condition would be permanent, was based, by his own statement, partly on X-ray films which he had never seen; that his only knowledge thereof was hearsay; that his interpretation of them was incompetent and had not been submitted to the jury; and that the question and, therefore, his opinion and answer were expressly predicated in part on facts not in evidence.

Plaintiff contends that even if incompetent, the quoted question and answer were cumulative and harmless; that Dr. Donaldson, who had taken the X-ray films, was present and interpreted them to the same effect, and expressed the opinion that the injuries shown would be permanent. Plaintiff points out, too, that defendant's expert witness, Dr. Francisco, also found, and from his own X-rays, that plaintiff's coccyx bone was tilted. Dr. Francisco, however, testified that in his opinion the condition was merely congenital, and not the result of trauma. Thus the issue was directly contested.

Incompetent evidence on a material issue is preseumed to be prejudicial unless clearly shown otherwise. [State ex rel. Berberich v. Haid, 333 Mo. 1224, 64 S.W.2d 667.]

The permanency of plaintiff's condition was a seriously contested issue in the case. We are unable to determine the weight which the jury attributed to the opinion of the plaintiff's attending physician that plaintiff's condition was permanent. It was certainly presented to the jury for the purpose of their favorable consideration of it on that issue. The only evidence before them that the condition would be permanent consisted of the testimony of the attending physician who had treated and examined the patient, but had not seen the X-rays, and the testimony of the doctor who had taken the X-rays, but had not attended or treated the patient. The testimony of neither witness was so ample as to justify the assumption that the result would have been the same without the objectionable question and answer. The matter complained of cannot be disputed of as merely cumulative and harmless. It is certain that the permanency of a plaintiff's injuries cannot be proven by the opinion of an expert based...